Wright v. Redd

• Decision Date: 16 April 1901
• Parties: WRIGHT v. REDD et al.
• Court: Tennessee Supreme Court

Page 1120

63 S.W. 1120

WRIGHT v. REDD et al.

Supreme Court of Tennessee.

April 16, 1901.

Error to circuit court, Dyer county; Thomas J. Flippin, Judge.

Replevin by Redd Bros. against J. F. Wright. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

Bell & Gordon and S. H. Williams, for plaintiff in error. Latta & Latta and Draper & Rice, for defendants in error.

CALDWELL, J.

This is an appeal in error by J. F. Wright, the unsuccessful defendant in an action of replevin for the possession of two mules. The substance of the only assignment of error is that there is no evidence to support the verdict, in that undisputed testimony shows that the mules involved were under mortgage to a third person, and consequently not subject to the possessory action of the plaintiffs, Redd Bros. This objection calls for an investigation of the proof in the case, which, for the lack of a proper bill of exceptions, is not before us. The transcript contains what was intended as a bill of exceptions, with a detailed statement of the evidence introduced before the jury; but it cannot be regarded as a part of the record, and for that reason cannot be considered in this court. The appeal was granted at the end of the term, on the 22d of December, 1900; and the defendant was, by order of the trial judge, allowed 15 days from that day for the preparation of his bill of exceptions. The bill of exceptions was signed by the judge January 6, 1901, the last day of the extension, but was not filed by the clerk until January 9th, — three days later This was too late. Section 1 of chapter 275 of the Acts of 1899, which is the only authority for extending time for the preparation of a bill of exceptions beyond the close of the term at which the case is tried, requires imperatively that it shall be both prepared and filed within the time allowed for that purpose; and, if filed after the expiration of that time, it is as if not filed at all, and of no effect whatever. Bettis v. State, 103 Tenn. 339, 52 S. W. 1071; Muse v. State, 106 Tenn. ___, 61 S. W. 80; Jones v. Moore, 106 Tenn. ___, 61 S. W. 81. In the absence of a bill of exceptions, the presumption is indisputable that the conclusion reached by the jury is that which the evidence required. Scruggs v. Heiskell, 95 Tenn. 455, 32 S. W. 386; Pratt v. Gillespie, 97 Tenn. 217, 36 S. W. 1097; Daniel v. Coal Co., 105 Tenn. 471, 58 S. W. 859.

Affirmed.